CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Plaintiff, born November 20, 1967, applied for SSI benefits on July 30, 2008, alleging disability beginning November 15, 2005. Administrative Transcript ("AT") 21, 28. Plaintiff alleged he was unable to work due to chronic Pulmonary Insufficiency (COPD), back injury causing disorders of the back (discogenic and degenerative), multiple sclerosis, and emphysema with shortness of breath. AT 79, 153. In a decision dated May 13, 2010, the ALJ determined that plaintiff was not disabled.
AT 23-29.
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) The ALJ's finding that plaintiff's learning disorder is not a severe impairment is not based on substantial evidence and, in making that finding, the ALJ failed to conduct the analysis set forth in 20 CFR 416.920a; (2) the ALJ's physical residual functional capacity ("RFC") is not based on substantial evidence; and, (3) the Commissioner failed to sustain his burden of establishing that, alternatively, there is other work in the national economy that plaintiff could perform because he failed to obtain vocational expert testimony. (ECF No. 16-1.)
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
The record as a whole must be considered,
With regard to the ALJ's finding that plaintiff's mental impairment is non-severe, plaintiff argues that the ALJ failed to conduct the analysis required by 20 C.F.R. § 416.920a and also that the ALJ's finding of non-severity is not based on substantial evidence. (ECF No. 16-1, 14.) The former issue must be addressed first because remand is required where (1) an ALJ fails to properly analyze plaintiff's mental impairment in his findings and conclusions, and (2) that error is not harmless.
When making a mental impairment disability assessment at step two of the disability determination, an ALJ is bound by 20 C.F.R. § 416.920a, which requires those reviewing an application for disability to follow a special psychiatric review technique.
Here, the ALJ did not complete and append a PRTF in making the mental impairment disability assessment. Thus, the issue is whether the ALJ properly incorporated the PRTF's mode of analysis into his findings and conclusions.
In his opposition and cross-motion for summary judgment, defendant seems to argue that the ALJ intended to find that plaintiff had no medically determinable mental impairment. (ECF No. 19, 15-16.) If this were the case, then the ALJ would not be required to incorporate the PRTF's mode of analysis into his findings and conclusions. 20 C.F.R. § 416.920a(b). However, this argument runs contrary to the fundamentals of textual interpretation. In finding that plaintiff's "mental impairment . . . is non-severe within the meaning of the Regulations[,]" the ALJ stated that the "evidence of record contains very little evidence of a severe mental health impairment." AT 24. Thus, the ALJ clearly made a finding that a medically determinable mental impairment exists, but that it is non-severe. Because the ALJ determined that plaintiff had a medically determinable mental impairment, the ALJ was required to rate the degree of functional limitation in the four areas set forth in 20 C.F.R. § 416.920a(c). 20 C.F.R. § 416.920a(b).
The only evidence of plaintiff's mental impairment is provided by two reports completed by Dr. Kalman. AT 439-46. After finding that a non-severe mental impairment exists, the ALJ discussed the findings in Dr. Kalman's reports. AT 24. These reports consist of a "Medical Source Statement," which is a check-box form concerning plaintiff's mental impairment, and a written psychiatric evaluation.
Although the contents of Dr. Kalman's reports fully encompass the four functional areas listed in 20 C.F.R. § 416.920a(c)(3), it clear that an ALJ merely discussing the findings of these reports without completing a PRTF and appending it to the decision, or incorporating its mode of analysis and making specific findings as to the degree of limitation, is not sufficient for meeting the requirements set forth in 20 C.F.R. § 416.920a.
However, an ALJ's failure to comply with 20 C.F.R. § 416.920a is harmless if the plaintiff has failed to demonstrate a colorable claim of mental impairment.
Because there is no other evidence in the record of a mental impairment, plaintiff exclusively relies on Dr. Kalman's reports in arguing that a colorable claim of mental impairment has been demonstrated. (ECF No. 16, 17; ECF No. 21, 3-5.) In the check-box form, Dr. Kalman gave plaintiff marks of mild limitation for plaintiff's "ability to understand and remember detailed (3 or more steps) instructions or tasks which may or may not be repetitive," "ability to carry out detailed (3 or more steps) instructions which may or may not be repetitive," and "ability to accept instructions and to respond appropriately to criticism from supervisors." AT 440-441. These marks coincide with Dr. Kalman's notes in his written report that plaintiff "exhibited decreased memory . . . could not do serial 3's" and that "[h]is intelligence was below average." AT 445. Dr. Kalman also marked that work-related stressors would increase plaintiff's level of impairment. AT 441. In making his assertion, plaintiff also points to the GAF score of 57 assigned by Dr. Kalman, which indicates moderate symptoms or difficulties,
Defendant argues that Dr. Kalman's reports do not form the basis of a colorable claim of mental impairment. (ECF No. 19 at 17.) Defendant contends that aspects of Dr. Kalman's reports run contrary to the record as a whole and that some of the findings are not fully supported. (
Although the record contains no evidence that plaintiff has a severe mental impairment outside of Dr. Kalman's reports, there is evidence in the record that plaintiff does not have a mental impairment at all. At the hearing, plaintiff denied having depression and denied that his fear or nervousness caused by being around other people would impact his ability to perform work. AT 56-57, 70. Plaintiff did not allege a disabling mental impairment, or anything relating to such impairment, in his application for disability benefits. AT 152-59. Also at the hearing, plaintiff's attorney made no mention of a mental impairment upon discussing the combination of plaintiff's impairments, which were all physical in nature. AT 72. Lastly, none of the records from plaintiff's participation in the ALLIES II program held at San Joaquin Behavioral Health indicate a diagnosis or assessment of any mental impairment by an acceptable medical source. AT 374-437.
Even in assessing Dr. Kalman's reports in isolation, the diagnoses of unspecified learning disorder and rule-out unspecified depression is barely supported, if at all. Dr. Kalman's written report contains no compelling, objective evidence of a mental impairment aside from notes relating to plaintiff's below average intelligence, his poor memory, and that plaintiff does not like to be around people because he gets nervous. AT 444-45. However, in the mental status examination, Dr. Kalman also noted that plaintiff displayed the ability to do simple math, has fair judgment, and has a form of thought that is logical and goal oriented. AT 445. Also, Dr. Kalman's written report notes that plaintiff denied having depression, being hospitalized for psychiatric reasons, receiving any outpatient psychiatric treatment, or having a family history of mental illness. AT 444. Additionally, the written report indicated a fairly normal family, social, and environmental history and currently a normal level of functioning.
As it pertains to establishing a colorable claim of mental impairment, plaintiff's claim, which relies exclusively on Dr. Kalman's reports while ignoring other aspects of the record, is wholly insubstantial. Because plaintiff failed to provide adequate evidence of plaintiff's mental impairment, it is not similar to previous decisions finding that an ALJ's failure to comply with 20 C.F.R. § 416.920a was not harmless.
Because plaintiff relies on reports that contain unsupported conclusions and are partially contradictory, the claim is also immaterial. The GAF score Dr. Kalman assigned to plaintiff in his written report runs contrary to the limitation assignments in the check-box form. Moreover, Dr. Kalman's diagnosis of rule-out unspecified depression is contrary to plaintiff's own statements at the hearing and during Dr. Kalman's examination. Likewise, Dr. Kalman's diagnosis of an unspecified learning disorder is only supported by a showing of memory issues and that plaintiff said he was in "slow classes." Also, because plaintiff did not allege a disabling mental impairment in his application for disability benefits and denied having depression multiple times, plaintiff's claim is seemingly frivolous.
Plaintiff has failed to demonstrate a colorable claim of mental impairment. Therefore, that the ALJ failed comply with the requirements set forth in 20 C.F.R. § 416.920a is a harmless error that does not require remand.
Furthermore, it cannot be argued that the ALJ's finding of a non-severe mental impairment was not based on substantial evidence. The plaintiff denied having depression and that his fear or nervousness caused by being around other people would impact his ability to perform work. In eleven categories of the check-box form pertaining to understanding and memory, and sustained concentration and persistence, Dr. Kalman gave plaintiff nine marks of "Not Significantly Limited" and only two of "Mildly Limited," yet plaintiff's poor memory and low intellectual functioning were the only evidence supporting a diagnosis of unspecified learning disorder. This evidence is certainly substantial in that it is more than a mere scintilla of evidence supporting the ALJ's conclusion.
Plaintiff contends the ALJ erred in formulating plaintiff's residual functional capacity because the finding is not based on substantial evidence. (ECF No. 16-1, 17-21.) Plaintiff asserts that the ALJ assigned great weight to consultative physician Dr. Brimmer's opinion although she did not have the benefit of reviewing a complete record.
Social Security Ruling 96-8p sets forth the policy interpretation of the Commissioner for assessing residual functional capacity. SSR 96-8p. Residual functional capacity is what a person "can still do despite [the individual's] limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a) (2012);
As stated above, the ALJ assessed plaintiff's RFC at the medium exertional level, including lifting up to 50 pounds occasionally and 25 pounds frequently, and sitting, standing, and/or walking up to 6 hours in an 8-hour workday. AT 25. The ALJ restricted plaintiff's RFC in that he can only occasionally bend, he can only occasionally reach overhead with the bilateral upper extremities, and he must avoid concentrated exposure to fumes, odors, dusts, gases, and areas with poor ventilation.
The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons.
Dr. Brimmer noted in her October 20, 2008 examination report that plaintiff was evasive and vague, leaving her the impression that he may not have been entirely candid. AT 271. In this examination with Dr. Brimmer, plaintiff denied a history of drug, alcohol, or tobacco use. AT 272. Also, on December 28, 2009, in plaintiff's psychiatric evaluation with Dr. Kalman, plaintiff denied the use of drugs, including marijuana, since ten years prior to the evaluation. AT 445. However, plaintiff admitted to using marijuana to a triage nurse on December 20, 2004 and to Dr. Yavrouian on January 28, 2005. AT 302, 309. Plaintiff reported to Dr. Yavrouian that the MS diagnosis was made about two years prior to the examination. AT 302. Plaintiff later informed Dr. Brimmer that he was diagnosed with multiple sclerosis fifteen years prior to the examination date. AT 272. Plaintiff's reports of multiple sclerosis are not substantiated by any medical report or other objective evidence in the record. Also, plaintiff reported to Dr. Kalman that he was last incarcerated (for selling drugs) in 1988, AT 444, but medical records from the San Joaquin County Jail indicate that the claimant was released from jail as recently as March of 2008. AT 250. Lastly, plaintiff reported to Dr. Kalman that he last worked in 1993, but the ALJ found that his work history indicated that he worked as recently as 2006. AT 27. Plaintiff has not contested any of these findings. Thus, the ALJ's finding that "the information provided by claimant generally may not be entirely reliable" and his reliance on the objective medical evidence is based on substantial evidence in the record. AT 27.
At the hearing, plaintiff said that he did not have multiple sclerosis, but that his bones, joints, and back hurt and ache badly. AT 55. Plaintiff stated that strenuous activity, such as walking to the mailbox, caused his breathing to worsen but that when he uses his inhaler his lungs feel a lot better. AT 63-64. He said that along with his breathing, his back prevents him from working because he can't sit for more than 20-25 minutes or stand for more than 25 minutes before his back starts hurting. AT 64. However, plaintiff said that the back pain would not be disabling or debilitating if he had to sit for 50 minutes. AT 70. The ALJ cited objective evidence, including multiple medical records and findings from Dr. Brimmer's report, in finding that these allegations pertaining to his inability to work due to emphysema and back pain are less than fully credible.
As it pertains to plaintiff's allegations regarding emphysema, the ALJ noted that there were records from November 19, 2008 through May 8, 2009 indicating that plaintiff had moderate obstructive airway disease, bilateral wheezes, diffuse wheezing, and significant bullae in the apical regions bilaterally. AT 26. The ALJ also noted that plaintiff had been prescribed albuterol, given a course of Prednisone, and was given a nebulizer treatment.
As it pertains to plaintiff's allegations regarding back pain, the ALJ noted that during Dr. Brimmer's October 20, 2008 physical examination, plaintiff was able to rise from a seated position and move about the room without difficulty, and that straight leg raising, strength, and sensory tests were entirely normal. AT 26. The ALJ noted that in this examination plaintiff had back spasms, tenderness, some range of motion deficit, and restricted range of motion in the bilateral shoulder joints.
Upon finding that plaintiff retains the ability to perform a wide range of medium work, the ALJ assigned great weight to Dr. Brimmer's opinion and noted that Drs. Jansen and Rubaum came to the same conclusion as Dr. Brimmer regarding plaintiff's functional limitations. AT 27-28. The ALJ also stated that Dr. Brimmer's conclusions are supported by medical explanation and are consistent with the findings from her clinical examination.
Finally, plaintiff argues that the July 15, 2010 Residual Functional Capacity Questionnaire from Dr. Abatecala undermines the ALJ's conclusions. AT 464-68. After the ALJ's decision, plaintiff submitted this document to the Appeals Council, which it made part of the record upon denying plaintiff's request for review. AT 1-4;
The Appeals Council assigned Dr. Abatecola's assessment little weight after finding that it was not supported by objective medical findings and other medical opinions in the record. AT 2. Dr. Abatecola diagnosed plaintiff with multiple sclerosis, but neglected to provide any objective support for this conclusion. AT 464-68. Plaintiff's records do not contain any clinical evidence of multiple sclerosis and, as mentioned above, at the hearing plaintiff denied having multiple sclerosis. Dr. Abatecola also listed peripheral neuropathy as another diagnosis, but admitted that there was no etiology found. AT 464. Defendant's argument that Dr. Abatecola's opinion is only consistent with plaintiff's subjective reporting, which has been found to be less than credible, is convincing based on the entire record. Thus, this court concludes that even with consideration of the additional records, substantial evidence supports the ALJ's decision that plaintiff is not disabled.
Plaintiff claims the ALJ erred in employing the Medical-Vocational Guidelines ("the grids") in light of the limitation that plaintiff can only occasionally bend, can only occasionally reach overhead with his bilateral upper extremities, and has environmental limitations. (ECF 16-1, 21.) The grids categorize jobs by their physical-exertional requirements (e.g., sedentary, light and medium) and present various combinations of factors the ALJ must consider in determining the availability of work that the claimant can perform.
Because the grids are merely an administrative tool to resolve individual claims that fall into standardized patterns, there are limits on when the ALJ may rely on them. "[T]he ALJ may apply [the grids] in lieu of taking the testimony of a vocational expert only when the grids accurately and completely describe the claimant's abilities and limitations."
Here, the ALJ found that plaintiff was able to "perform medium work as defined in 20 CFR 416.967(c)" but that "he can only occasionally bend; he can only occasionally reach overhead with the bilateral upper extremities; and he must avoid concentrated exposure to fumes, odors, dusts, gases, and areas with poor ventilation." AT 25. The ALJ explained that these limitations have little effect on the occupational base of work for which plaintiff is qualified, thereby justifying the absence of vocational expert testimony.
The functional capacity to perform medium work includes the functional capacity to perform sedentary, light, and medium work. 20 C.F.R. pt. 404, subpt. P, App. 2, § 203.00. The grids with plaintiff's vocational profile for both light and sedentary work would mandate a finding of non-disability. AT 28;
Because the postural, manipulative, and environmental restrictions contained in the ALJ's residual functional capacity finding do not significantly affect plaintiff's sedentary occupational base,
For the reasons stated herein, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 16) is denied;
2. The Commissioner's cross-motion for summary judgment (ECF No. 19) is granted; and
3. Judgment is entered for the Commissioner.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.
Nonexertional activities include mental, sensory, postural, manipulative and environmental matters that do not directly affect the primary strength activities. 20 C.F.R. § 416.969a(c)(2003); SSR 83-10, Glossary;
